Sen. Alexander's Deeply Dishonest Filibuster Reform Speech

January 05, 2011 12:11 pm ET

At a Heritage Foundation event yesterday, Sen. Lamar Alexander (R-TN) gave a speech decrying Democratic attempts to change the filibuster rules. The speech was shot through with falsehoods, such as the claim that Democrats are trying to eliminate minority rights in the Senate because they lost an election. In fact, the reform proposals preserve the filibuster, but require obstructionists to actually hold the floor continuously to prevent a bill's consideration. Similarly, Alexander claimed that Democrats have invented the simple majority vote for rules changes out of thin air, but the practice is based in the Constitution and was used as early as 1917 — and Republicans argued for the procedure in 2005. Later, Alexander disingenuously quoted the late Sen. Robert Byrd (D-WV). Byrd condemned GOP filibusters, but Alexander simply skipped that part of Byrd's speech. Most egregious among Alexander's falsehoods, he claimed that Democrats are "the real party of no," despite the fact that filibusters have doubled since Republicans lost control of the Senate.

SEN. LAMAR ALEXANDER (R-TN): The
Democratic proposal would allow the Senate to change its rules with only 51
votes, ending the historical practice of allowing any senator at any time to offer
any amendment, until 60 senators decided it's time to end the debate. As Investor's Business Daily wrote, quote,
"The Senate Majority Leader has a plan
to deal with the Republican electoral success. When you lose the game," the
newspaper said, "you simply change the rules. When you only have 53 votes,
you lower the bar to 51. This is called election nullification," unquote.

FACT: The Constitution Allows The
Senate To Change Its Own Rules With A 51-Vote Majority

Using 51 Votes To
Change Senate Rules Is Called "The Constitutional Option." As reported by
Ezra Klein of the Washington Post:

The
constitutional option gets its name from Article I, Section V of the
Constitution, which states that "Each House may determine the Rules of its
Proceedings." In order to fulfill this constitutional order, the Senate
must be able to, well, determine its rules. A filibuster, technically,
is a way to stop the Senate from determining something by refusing to allow it
to move to a vote. Because stopping the
Senate from considering its own rules would be unconstitutional, the chair can
rule against the filibuster, and the Senate could then move to change its rules
on a majority vote.

One caveat: Many people, including Udall himself, believe this has
to happen at the beginning of a new Congress. If it doesn't happen at the
beginning of a new Congress, then Congress is considered to have acquiesced to
the previous Congress's rules, and a filibuster against further rule changes
wouldn't interrupt the constitutional right to determine the rules.

This is not a radical theory, or a partisan one: Both Richard
Nixon, then the vice president and thus the president of the Senate, and Robert
Byrd, then majority leader and considered the greatest parliamentarian to ever
walk the chamber, have argued in favor of the constitutional option. [Washington Post, 7/27/10,
emphasis added]

FACT: Far From A Newfangled
Democratic Scheme, Simple Majority Votes To Change Senate Rules Have Been Supported
By Both Parties As Far Back As 1917

GOP's Sen. Hatch, 2005: At Start Of New Congress, "A Simple Majority
Can Invoke Cloture And Change Senate Rules." In a 2005 op-ed in the National Review, Sen. Orrin Hatch (R-UT)
wrote:

The Senate exercises its
constitutional authority to determine its procedural rules either implicitly or
explicitly. Once a new Congress begins, operating under existing rules
implicitly adopts them 'by acquiescence.' The Senate explicitly determines its
rules by formally amending them, and the procedure depends on its timing. After
Rule 22 has been adopted by acquiescence, it requires 67 votes for cloture on a
rules change. Before the Senate adopts
Rule 22 by acquiescence, however, ordinary parliamentary rules apply and a
simple majority can invoke cloture and change Senate rules.

Some object to this conclusion by
observing that, because only a portion of its membership changes with each
election, the Senate has been called a "continuing body." Yet language
reflecting this observation was included in Senate rules only in 1959. The more important, and much older, sense
in which the Senate is a continuing body is its ongoing constitutional
authority to determine its rules. Rulings by vice presidents of both
parties, sitting as the President of the Senate, confirm that each Senate may
make that decision for itself, either implicitly by acquiescence or explicitly
by amendment. Both conservative and
liberal legal scholars...agree that a simple majority can change Senate rules at
the beginning of a new Congress. [Sen. Hatch op-ed, National Review, 1/12/05, emphasis added]

The Senate Has
Attempted Simple Majority Vote Rule Changes Several Times. In a Harvard Journal of Law & Public Policy
article titled "The Constitutional Option To Change Senate Rules And Procedures:
A Majoritarian Means To Overcome The Filibuster," Martin Gold and Dimple Gupta
wrote: "The constitutional option has
been endorsed, explicitly or implicitly, by three U.S. Vice Presidents and
three times, by the Senate itself. Moreover, on three occasions prior to
1979, a majority had used the threat of the constitutional option to force a
formal change to the Senate Standing Rules." [Harvard Journal of Law & Public Policy, "The Constitutional Option
To Change Senate Rules And Procedures: A Majoritarian Means To Overcome The Filibuster,"
2005,
emphasis added]

Late Sen. Robert Byrd In 1979: The Constitution "Says That Each House Shall Determine The Rules Of Its Proceedings." In a 1979 floor speech, Sen. Byrd said:

The Constitution in article I, section 5, says that each House shall determine the rules of its proceedings. Now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past.

. . . .

The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time... So the Members of the Senate who met in 1789 and approved...that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate.... It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.

[I]t is my belief-which has been supported by rulings of Vice Presidents of both parties and by votes of the Senate-in essence upholding the power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress. [Sen. Byrd floor speech, 1979, via Law.Harvard.edu]

The Senate Attempted
A Simple Majority Vote On Rule Changes In 1917. In a Harvard Journal of Law & Public Policy article titled "The Constitutional
Option To Change Senate Rules And Procedures: A Majoritarian Means To Overcome
The Filibuster," Martin Gold and Dimple Gupta wrote:

Senator Thomas J. Walsh (D-MT) first advocated using the constitutional option in 1917. Like Byrd, Walsh reasoned that a newly commenced Senate may
disregard the rules established by a prior Senate, including the rules
governing filibusters, and adopt new rules in their stead. During this process,
Walsh explained, the Senate would revert to the powers set forth in the U.S.
Constitution and rely upon traditional parliamentary procedures, which contain
procedural mechanisms to control filibusters.

Like Byrd's opponents, Walsh's
opponents gave way once they realized that Walsh potentially had enough votes
to carry out his plan, resulting in the Senate adopting its first formal rule
limiting debate. Similarly, in 1959, after over a dozen civil rights bills had
been defeated by filibusters, and in 1975, after nearly two decades of rules change
attempts were thwarted, the minority gave way and agreed to amend the Senate
cloture rule once it became apparent that a majority of the Senate was prepared
to carry out the constitutional option. On all four occasions--1917, 1959,
1975, and 1979--the rules changes may never have been adopted but for the
prospect that the constitutional option would be exercised. [Harvard Journal of Law & Public Policy,
"The Constitutional Option To Change Senate Rules And Procedures: A Majoritarian
Means To Overcome The Filibuster," 2005,
emphasis added]

CLAIM: Sen. Alexander Claimed That Democrats, Not GOP, Are "The Real Party
Of No" And "The Real Obstructionists"

SEN. LAMAR ALEXANDER (R-TN): But the demise of the Senate is not because Republicans seek to filibuster.
The real obstructionists have been the Democratic majority, which for an
unprecedented number of times used their majority advantage to limit debate,
not to allow amendments, and to bypass normal committee consideration of
legislation. To be specific, according to the Congressional Research Service,
number one: The Majority Leader has used his power to cut off all amendments
and debate 44 times, more than the last six Majority Leaders combined. Number
two, the Majority Leader has moved to shut down debate the same day measures
are considered nearly three times more on average than the last six Majority
Leaders. And number three, the Majority Leader has set the record for bypassing
the committee process, bringing a measure directly to the floor, bypassing
committees, 43 times in the last two Congresses. [...] So the real party of no is the majority party that's been saying no
to debate, no to voting on amendments that minority members believe improve
legislation and express the voices of the people they represent.

FACT: Since
Losing Majority In 2006, Republicans Have Doubled The Number Of Filibusters In
The Senate

Cloture Filings
Jumped From 68 In 109th Congress To 139 In 110th
Congress. According to the Senate's website, there were 68 cloture motions
filed and 54 cloture votes in the 109th Congress (2005-2006). The
Democratically-controlled Senate in the 110th Congress (2007-2008)
saw 139 motions and 112 votes on
cloture. [Senate.gov, accessed 1/4/11]

These are the numbers on cloture over the last several decades.
Often, but not always, cloture is employed by senate majority leaders in
response to filibuster threats from the minority. Cloture isn't always
necessarily correlated with filibusters, but broadly speaking, the two often go
hand in hand.

What's particularly striking here is the GOP's use of filibuster
threats, and the correlated increase in Democratic cloture motions. Take, for
instance, the huge spike in cloture motions filed from the Republican-led 109th
Congress in 2005-2006 to the Democratic-majority 110th in 2007-2008.

"It is the most striking in history," American
Enterprise Institute resident scholar Norm Ornstein told TPM.

What happened, Ornstein says, is that during the last two years
of President George W. Bush's second term, Republicans offered "no
initiatives to speak of."

The initiatives were
coming from the Democrats, and the Republicans wanted to kill 'em, or slow things
down.

While Cloture Motions Sometimes Happen For
Other Reasons, The Recent Spike Is Because Of GOP Filibusters. As reported by Talking Points Memo: "Of course, not all cloture motions are direct
responses to explicit filibuster threats. Sometimes majority leaders use
cloture filings to do preliminary headcounts and try to avoid wasted time on
legislation that can't muster enough votes. Still, [American Enterprise
Institute resident scholar Norm] Ornstein largely attributes the stark rise in
cloture motions in the 110th Congress to Republican delay and obstruction
tactics. 'You're not gonna see that sharp jump up just because you're tracking
heads,' he said." [Talking Points Memo,
1/27/10]

Senate
Averaged 70 Filibusters Per Year In Last Two Sessions. As reported by the National
Journal: "As the 111th Congress
hurtles to a close, more and more bills
are dying despite receiving majority votes in the Senate, and in some
cases, the House as well. [...] Since 2006, the number of
cloture motions filed has exploded, from 68 just four years ago to at least 132
motions in the 111th Congress, according to Senate statistics. The Senate averaged about one filibuster a
year until 1970, while in the last two sessions it has averaged 70 per year,
according to Democracy Rules, a coalition pushing for reform." [National Journal, 12/16/10,
emphasis added]

The Majority Must
File Cloture Motion To Break Filibusters. In a 2003 Congressional Research
Service report titled "Filibusters and Cloture in the Senate," Richard S. Beth
and Stanley Bach wrote: "Filibustering includes any use of dilatory or
obstructive tactics to block a measure by preventing it from coming to a vote. The
possibility of filibusters exists because Senate rules place few limits on
Senators' rights and opportunities in the legislative process. ... Also, there is
no motion by which a simple majority of the Senate can stop a debate and allow
the Senate to vote in favor of an amendment, a bill or resolution, or any other
debatable question. ... Senate Rule
XXII, however, known as the 'cloture rule,' enables Senators to end a
filibuster on any debatable matter the Senate is considering. Sixteen Senators
initiate this process by presenting a motion to end the debate. The Senate does
not vote on this cloture motion until the second day after the motion is made.
Then it usually requires the votes of at least three-fifths of all Senators
(normally 60 votes) to invoke cloture." [Congressional Research Service, "Filibusters
and Cloture in the Senate," 3/28/03
via Senate.gov]

SEN. LAMAR ALEXANDER (R-TN): I have said that to do so would
destroy minority rights, destroy the essential forum for consensus that the
Senate now provides for difficult issues, and surely guarantee that Republicans
will try to do the same thing to Democrats in two years. More than that, it's
hard to see how Democrats can gain any partisan advantage from this destruction
of the Senate.

Reid has heard the calls. But his answer will surely disappoint:
Sorry. It can't happen.

Reid's
office has studied the history of the filibuster and analyzed what options are
available. The resulting memo was provided to the Huffington Post and it
concludes that a filibustering Senator "can be forced to sit on the
[Senate] floor to keep us from voting on that legislation for a finite period
of time according to existing rules but he/she can't be forced to keep talking
for an indefinite period of time."

Bob Dove,
who worked as a Senate parliamentarian from 1966 until 2001, knows Senate rules
as well as anyone on the planet. The Reid analysis, he says, is "exactly
correct." [...]

As both Reid's memo and Dove
explain, only one Republican would need to monitor the Senate floor. If the
majority party tried to move to a vote, he could simply say, "I suggest
the absence of a quorum."

The presiding officer would then be required to call the roll.
When that finished, the Senator could again notice the absence of a quorum and
start the process all over. At no point would the obstructing Republican be
required to defend his position, read from the phone book or any of the other
things people associate with the Hollywood version of a filibuster.

"You cannot force senators to talk during a filibuster,"
says Dove. "Delay in the Senate is not difficult and, frankly, the only
way to end it is through cloture."

The consensus package will aim to put an end to
"secret holds" (anonymous filibuster threats) and disallow the
minority from blocking debate on an issue altogether. Those two reforms are
fairly straightforward. The third is a bit more complex. [...]

In an
interview Wednesday, Udall explained the ins and outs of that particular
proposal.

"What
we seem to have the most consensus on, is what I would call... a talking
filibuster," Udall told me. "Rather than a filibuster which is about
obstruction."

As things currently stand, the onus is
on the majority to put together 60 votes to break a filibuster. Until that
happens, it's a "filibuster," but it's little more than a series of
quorum calls, votes on
procedural motions, and floor speeches. The people who oppose the underlying
issue don't have to do much of anything if they don't want to.

Here's
how they propose to change that. Under this plan, if 41 or more senators voted
against the cloture motion to end debate, "then you would go into a period
of extended debate, and dilatory motions would not be allowed," Udall
explained.

As long as a member is on hand to keep
talking, that period of debate continues. But if they lapse, it's over -- cloture is invoked and,
eventually, the issue gets an up-or-down majority vote.

That doesn't do away with the principle
of unlimited debate. If the minority is determined...it can wait out the majority
and force them to pull the legislation.

CLAIM: Sen. Alexander Implied That Sen. Robert
Byrd's Final Senate Speech Did Not Condemn GOP Obstructionism

SEN.
LAMAR ALEXANDER (R-TN): Now what
would it take to restore today's Senate to the era of Senator Baker and Senator
Byrd? Well, we have the answer from the master of the Senate rules himself,
Senator Byrd, who in his last appearance before the Senate Rules Committee on
May 19, 2010 said, quote, "forceful
confrontation to a threat of a filibuster is undoubtedly the antidote to that
malady." [...] Then Senator Byrd
went on, quote, "in his notes to the Constitutional
Convention on June 26, 1787, James Madison recorded that the ends to be served
by the Senate were, first, to protect the people against their rulers. Second,
to protect the people against the transient impressions into which they might themselves
be led. They themselves as well as a numerous body of representatives were
liable to err also from fickleness and passion. A necessary fence —" this
is Byrd quoting James Madison — "against
this danger would be to select a portion of enlightened citizens whose limited
number and firmness might seasonably interpose against impetuous counsel." That's
the end of that quote. "That fence"
Senator Byrd said, "was the United States
Senate, the right to filibuster anchors the necessary fence but not a right
intended to be abused." And then Senator Byrd concluded, "there are many suggestions about what we should do. I know what we
must not do. We must never ever, ever, ever tear down the only wall, the
necessary fence, this nation has against the excess of the executive branch and
the resultant haste and tyranny of the majority." That was Senator Byrd in
his last appearance before the Senate Rules Committee.

FACT: Sen.
Alexander Skipped Sen. Byrd's Condemnation Of Republicans For "Threaten[ing] To
Filibuster Almost Every Matter"

Sen. Byrd: GOP Filibusters Leave Senate "Impotent" And
Then Democrats Are "Derided For Inaction By Those Causing Delay." In
a statement to the Rules Committee on May 19,
2010, Sen. Byrd said: "The right to filibuster anchors this
necessary fence. But it is not a right intended to be abused.During this 111th Congress, in
particular, the minority has threatened to filibuster almost every matter for
Senate consideration. I find this tactic contrary to every senator's duty to
act in good faith. I share the profound frustration of my constituents and
colleagues as we confront this situation. The challenges before our nation are
too grave, too numerous, for the Senate to be rendered impotent to address
them, and yet, be derided for inaction by those causing the delay.There are many suggestions as to what we
should do. I know what we must not do. We must never, ever, ever, ever tear
down the only wall, the necessary fence that this nation has against the
excesses of the executive branch and the resultant haste and tyranny of the
majority." [Byrd Committee Statement, 5/19/10, video via YouTube]

CLAIM: Sen. Alexander Suggested Twice That
Democrats Told Republicans They Couldn't Read The Affordable Care Act Until After
It Was Passed

SEN. LAMAR ALEXANDER (R-TN): Now in the November election, voters
showed that they very well remember the passage of the health care law on
Christmas Eve 2009. ... Those who didn't like it were told, we won the election,
we'll write the bill, we don't need your votes. The majority's attitude was
just that, and one person even said, you
can read it after we pass it. [...] This
was in December, the snow was coming down, and then they brought it out, more
than 2000 pages. We were told you can
found out what's in it after, y'know, after we, after we pass it.

FACT: In Context,
Speaker Pelosi Was Actually Talking About The "Fog Of Controversy" That
Obstructed Understanding Of The Affordable Care Act

Speaker Pelosi:
"You've Heard About The Controversies" But Not The Actual Content Of
The Affordable Care Act. In
March 2010, Speaker Pelosi said:

You've heard about the controversies within the
bill, the process about the bill, one or the other. But I don't know if you
have heard that it is legislation for the future, not just about
health care for America, but about a healthier America, where preventive care
is not something that you have to pay a deductible for or out of pocket. Prevention,
prevention, prevention-it's about diet, not diabetes. It's going to be very,
very exciting.

But we have to pass the bill so that you
can find out what is in it, away from the fog of the controversy.
Furthermore, we believe that health care reform, again I said at the beginning
of my remarks, that we sent the three pillars that the President's economic
stabilization and job creation initiatives were education and
innovation-innovation begins in the classroom-clean energy and climate,
addressing the climate issues in an innovative way to keep us number one and
competitive in the world with the new technology, and the third, first among
equals I may say, is health care, health insurance reform. Health insurance
reform is about jobs. This legislation alone will create 4 million jobs, about
400,000 jobs very soon.

We must have the courage, though, to get the job
done. We have the ideas. We have the commitment. We have the dedication. We
know the urgency. Now we have to have the courage to get the job done. So proud that President Obama is
taking the message so forcefully to the American people! This is long overdue,
a hundred years. [Speaker Pelosi Remarks, 3/9/10, emphasis
added]